It is September 5, 1939, and Earl Browder, head of the American Communist Party is testifying before the Dies Committee. The Party had not yet decided that the Second World War was an imperialist war on both sides (that was to come in a week, after the Soviet press said so) and definitely had not yet broken with Franklin D. Roosevelt (that was not to come for several weeks--in fact, the break wasn't complete until FDR denounced the Soviet invasion of Finland). So Browder perhaps viewed the session as just another attempt by conservatives to embarrass FDR by linking the New Deal with the Communists. In any event, he does not seem to have been on guard as much as he should have been...
Rhea Whitley, counsel for the Committee, began the session by asking Browder if he had ever been known by any other names. This was a common question asked of witnesses, and Browder, unaware of the trap that was about to be sprung, said that he had used the pen names Ward and Dixon. Whitley dropped that line of questioning, and for several hours Browder and the Committee members "sparred inconsequentially on the CP's size, structure, and intentions" to quote Maurice Isserman, *Which Side Were You On? The American Communist Party During the Second World War*, p. 48. https://books.google.com/books?id=iWMprgS8q0AC&pg=PA48 Then in the midst of the afternoon session, Whitley suddenly asked, "Mr. Browder, have you ever traveled under a false passport?"
Amazingly, Browder answered "I have" before the Party's attorney, Joseph R. Brodsky https://en.wikipedia.org/wiki/Joseph_R._Brodsky could stop him. Maybe Browder had just been lulled into carelessness by the hours of giving testimony. Or maybe he thought he could not be prosecuted over those ancient false-name passports from the 1920's. Anyway, Brodsky quickly alerted Browder to his blunder, and for the rest of the session Browder invoked the Fifth Amendment. But it was too late; the damage had been done. Newspapers the next day carried headlines about Browder's admission; even *The Nation* wrote that "since Mr. Browder has admitted using a false passport, we do not see how the Department of Justice could avoid seeking an indictment" and Browder was indicted in October, with the *Daily Worker* headlining the story: BROWDER HELD ON FLIMSY CHARGES AS WAR-MONGERS DRIVE ON CIVIL RIGHTS.
Justice Department lawyers did not at first like the way the Dies Committee had forced their hand, but they eventually came to look on indictment for passport fraud as a seemingly "non-political" non-First Amendment-threatening way to satisfy public demands to crack down on the CP as a "fifth column." The First Amendment may protect advocacy of Communism, but it certainly doesn't protect passport fraud. Besides, even if they had wanted to prosecute Browder for sedition, there was no federal sedition act (that would soon be remedied by the enactment of the Smith Act). As relations between the administration and the CP deteriorated, the availability of the charges looked more and more providential.
Anyway, Browder went on trial in January 1940. The trial, before Alfred Coxe, Judge of the United States District Court for the Southern District of New York, https://en.wikipedia.org/wiki/Alfred_Conkling_Coxe_Jr. was brief. The government's case was as follows: In 1934, Browder had written the word "None" on a passport application in answer to a question of whether he had previously held an American passport. This was deliberately deceptive, said the government, since Browder had obtained three separate passports under assumed names during the 1920's: "Though the statute of limitations had long since expired for these violations [maybe that was why Browder thought he was not endangering himself in admitting the existence of such passports to the Dies Committee--DT] the government could still charge Browder with two counts of 'willfully and knowingly' using the 1934 passport to return to the United States from abroad in 1937 and 1938. Since he had not mentioned his earlier passports at the time of his 1934 application, the prosecution contended Browder was guilty of using a passport obtained through giving false information.
"Acting as his own lawyer, Browder contested the government's interpretation. In a one-and-a-half-hour summation to the jury he argued that when he had written the word 'None' in 1934, he meant only to deny that he had any old passports in his possession to surrender at the time of application. Since the government had known of these other passports long before 1934, he argued, it could not have been deceived by his response at the time." https://books.google.com/books?id=iWMprgS8q0AC&pg=PA57
The jury's verdict would depend on its judgment of Browder's mental state in answering "No" in 1934--did he intend to deceive the government? January 1940--with the Nazi-Soviet pact, the Soviet invasion of Finland, and the widespread belied that the CP was a "fifth column"--was not a time jurors were likely to give Browder the benefit of the doubt, and the jury convicted him after 45 minutes of deliberations. He was sentenced to four years imprisonment, but was freed on bail pending appeal.
In view of these facts, it may seem idle to speculate on what would have happened had Browder been acquitted. Yet after all it only takes one juror to produce a hung jury, and even in 1940 there were some Communist sympathizers in New York City: In a special election for Congress from NY-14 (a heavily Jewish district on the Lower East Side) Browder got 13.56 percent of the vote (3,080 votes). https://www.ourcampaigns.com/RaceDetail.html?RaceID=190645 Admittedly, that's a poor third (in one of the CP's strongest districts--in fact, his vote was about equal to the number of CP members in the district) but is it really inconceivable that there will have a Communist sympathizer on the jury? Or maybe someone who just feels that Browder is basically being punished on a technicality in a politically motivated prosecution? Of course with a hung jury there can always be a retrial, but what if there is a holdout juror there, too?
In OTL, Browder remained free on appeal until March 25, 1941 when he surrendered to US marshals. He would spend fourteen months in prison, before President Roosevelt would reduce his sentence to time served. These fourteen months were very hard on Browder. Yes, he had been imprisoned before in 1917-18 for refusing to register for the draft (he had considered the First World War imperialist, just as he considered the Second World War until June 22, 1941). But it was one thing to go to jail as a young revolutionary and another to do so as a fifty year old man with a wife and three children--and as *the* Earl Browder.
Obviously, the CP's basic policies during these months would not have been different if Browder had been actively heading the Party in those months--the "imperialist war" becoming a "people's war" after June 22, the switch from opposition to support of FDR, etc. These policies were inevitable; indeed, "orders from Moscow" weren't even necessary--all US Communists had to do was to read the Soviet press to know what Stalin wanted of Communist parties worldwide. However, Browder, years after his being expelled from the Party, did claim that he had one difference with the line formulated by the Party in his absence:
"Browder later claimed that the Communists in the CIO went along with the 'no-strike pledge' against his wishes, while he was still in jail. He favored a 'no-strike *policy,* A 'pledge,' according to Browder, implies that something will never be done. A 'policy' leaves room for striking when conditions so warrant." Harvey Levenstein, *Communism Anticommunism and the CIO*, p. 159. However, as Levensteiin notes, Browder's "actions and statements during the war" after his release lent "little credence to this claim." Indeed, the CP after Browder's return became more dedicated to labor peace and increased production than ever. Referring to a headline in the Trotskyist publlcation *The Militant*--"Earl Browder, Strikebreaker"--Browder remarked, "As regards the fomenting of the strike movement that threatens America at this present time, I consider it the greatest honor to be a breaker of this movement..." https://books.google.com/books?id=AhwCUUYEN2EC&pg=PA143
One possible difference Browder not being convicted in 1940 might make: If FDR had tried but failed to have Browder convicted, he would not have the dilemma of whether to commute his sentence in 1942. His decision to do so in OTL was somewhat controversial and was used by the Republicans in trying to make anti-Communism an issue in 1944 (admittedly, with only limited success).
Rhea Whitley, counsel for the Committee, began the session by asking Browder if he had ever been known by any other names. This was a common question asked of witnesses, and Browder, unaware of the trap that was about to be sprung, said that he had used the pen names Ward and Dixon. Whitley dropped that line of questioning, and for several hours Browder and the Committee members "sparred inconsequentially on the CP's size, structure, and intentions" to quote Maurice Isserman, *Which Side Were You On? The American Communist Party During the Second World War*, p. 48. https://books.google.com/books?id=iWMprgS8q0AC&pg=PA48 Then in the midst of the afternoon session, Whitley suddenly asked, "Mr. Browder, have you ever traveled under a false passport?"
Amazingly, Browder answered "I have" before the Party's attorney, Joseph R. Brodsky https://en.wikipedia.org/wiki/Joseph_R._Brodsky could stop him. Maybe Browder had just been lulled into carelessness by the hours of giving testimony. Or maybe he thought he could not be prosecuted over those ancient false-name passports from the 1920's. Anyway, Brodsky quickly alerted Browder to his blunder, and for the rest of the session Browder invoked the Fifth Amendment. But it was too late; the damage had been done. Newspapers the next day carried headlines about Browder's admission; even *The Nation* wrote that "since Mr. Browder has admitted using a false passport, we do not see how the Department of Justice could avoid seeking an indictment" and Browder was indicted in October, with the *Daily Worker* headlining the story: BROWDER HELD ON FLIMSY CHARGES AS WAR-MONGERS DRIVE ON CIVIL RIGHTS.
Justice Department lawyers did not at first like the way the Dies Committee had forced their hand, but they eventually came to look on indictment for passport fraud as a seemingly "non-political" non-First Amendment-threatening way to satisfy public demands to crack down on the CP as a "fifth column." The First Amendment may protect advocacy of Communism, but it certainly doesn't protect passport fraud. Besides, even if they had wanted to prosecute Browder for sedition, there was no federal sedition act (that would soon be remedied by the enactment of the Smith Act). As relations between the administration and the CP deteriorated, the availability of the charges looked more and more providential.
Anyway, Browder went on trial in January 1940. The trial, before Alfred Coxe, Judge of the United States District Court for the Southern District of New York, https://en.wikipedia.org/wiki/Alfred_Conkling_Coxe_Jr. was brief. The government's case was as follows: In 1934, Browder had written the word "None" on a passport application in answer to a question of whether he had previously held an American passport. This was deliberately deceptive, said the government, since Browder had obtained three separate passports under assumed names during the 1920's: "Though the statute of limitations had long since expired for these violations [maybe that was why Browder thought he was not endangering himself in admitting the existence of such passports to the Dies Committee--DT] the government could still charge Browder with two counts of 'willfully and knowingly' using the 1934 passport to return to the United States from abroad in 1937 and 1938. Since he had not mentioned his earlier passports at the time of his 1934 application, the prosecution contended Browder was guilty of using a passport obtained through giving false information.
"Acting as his own lawyer, Browder contested the government's interpretation. In a one-and-a-half-hour summation to the jury he argued that when he had written the word 'None' in 1934, he meant only to deny that he had any old passports in his possession to surrender at the time of application. Since the government had known of these other passports long before 1934, he argued, it could not have been deceived by his response at the time." https://books.google.com/books?id=iWMprgS8q0AC&pg=PA57
The jury's verdict would depend on its judgment of Browder's mental state in answering "No" in 1934--did he intend to deceive the government? January 1940--with the Nazi-Soviet pact, the Soviet invasion of Finland, and the widespread belied that the CP was a "fifth column"--was not a time jurors were likely to give Browder the benefit of the doubt, and the jury convicted him after 45 minutes of deliberations. He was sentenced to four years imprisonment, but was freed on bail pending appeal.
In view of these facts, it may seem idle to speculate on what would have happened had Browder been acquitted. Yet after all it only takes one juror to produce a hung jury, and even in 1940 there were some Communist sympathizers in New York City: In a special election for Congress from NY-14 (a heavily Jewish district on the Lower East Side) Browder got 13.56 percent of the vote (3,080 votes). https://www.ourcampaigns.com/RaceDetail.html?RaceID=190645 Admittedly, that's a poor third (in one of the CP's strongest districts--in fact, his vote was about equal to the number of CP members in the district) but is it really inconceivable that there will have a Communist sympathizer on the jury? Or maybe someone who just feels that Browder is basically being punished on a technicality in a politically motivated prosecution? Of course with a hung jury there can always be a retrial, but what if there is a holdout juror there, too?
In OTL, Browder remained free on appeal until March 25, 1941 when he surrendered to US marshals. He would spend fourteen months in prison, before President Roosevelt would reduce his sentence to time served. These fourteen months were very hard on Browder. Yes, he had been imprisoned before in 1917-18 for refusing to register for the draft (he had considered the First World War imperialist, just as he considered the Second World War until June 22, 1941). But it was one thing to go to jail as a young revolutionary and another to do so as a fifty year old man with a wife and three children--and as *the* Earl Browder.
Obviously, the CP's basic policies during these months would not have been different if Browder had been actively heading the Party in those months--the "imperialist war" becoming a "people's war" after June 22, the switch from opposition to support of FDR, etc. These policies were inevitable; indeed, "orders from Moscow" weren't even necessary--all US Communists had to do was to read the Soviet press to know what Stalin wanted of Communist parties worldwide. However, Browder, years after his being expelled from the Party, did claim that he had one difference with the line formulated by the Party in his absence:
"Browder later claimed that the Communists in the CIO went along with the 'no-strike pledge' against his wishes, while he was still in jail. He favored a 'no-strike *policy,* A 'pledge,' according to Browder, implies that something will never be done. A 'policy' leaves room for striking when conditions so warrant." Harvey Levenstein, *Communism Anticommunism and the CIO*, p. 159. However, as Levensteiin notes, Browder's "actions and statements during the war" after his release lent "little credence to this claim." Indeed, the CP after Browder's return became more dedicated to labor peace and increased production than ever. Referring to a headline in the Trotskyist publlcation *The Militant*--"Earl Browder, Strikebreaker"--Browder remarked, "As regards the fomenting of the strike movement that threatens America at this present time, I consider it the greatest honor to be a breaker of this movement..." https://books.google.com/books?id=AhwCUUYEN2EC&pg=PA143
One possible difference Browder not being convicted in 1940 might make: If FDR had tried but failed to have Browder convicted, he would not have the dilemma of whether to commute his sentence in 1942. His decision to do so in OTL was somewhat controversial and was used by the Republicans in trying to make anti-Communism an issue in 1944 (admittedly, with only limited success).
Last edited: